Claim No: CFI 046/2025

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURT

IN THE COURT OF FIRST INSTANCE

BETWEEN

ONDINA

Claimant/Appellant/Respondent to the Cross-Appeal

and

OLIN

Defendant/Respondent/Appellant to the Cross-Appeal

ORDER WITH REASONS OF H.E. JUSTICE MICHAEL BLACK KC

UPON the Claim Form issued in SCT-415-2024 dated 16 September 2024 (the “Claim”)

AND UPON the Judgment of H.E. Justice Maha Al Mheiri issued in SCT-415-2024 dated 12 February 2025 (the “Judgment”)

AND UPON the Claimant’s Appeal Notice in SCT-415-2024 dated 28 February 2025 for permission to appeal the Judgment (the “Permission to Appeal Application”)

AND UPON the Order with Reasons of H.E. Justice Michael Black KC dated 7 April 2025 granting the Permission to Appeal Application (the “Appeal”)

AND UPON the Defendant’s Appeal Notice filed in SCT-415-2024 dated 20 May 2025, seeking permission to cross appeal paragraph 16 of the Judgment (the “Permission to Cross-Appeal Application” or the “Cross-Appeal”)

AND UPON the Registry’s email dated 16 May 2025 and 9 June 2025 providing the parties with timelines for the pleading of the Permission to Cross-Appeal Application

AND UPON the Respondent to the Cross-Appeal’s submissions dated 27 and 29 May 2025, 23 June 2025 and 28 July 2025

AND UPON the Appellant to the Cross-Appeal’s submissions dated 16 June 2025 and 25 July 2025

AND PURSUANT TO the Rules of the DIFC Courts (the “RDC”)

IT IS HEREBY ORDERD THAT:

1. The Appeal is dismissed.

2. Permission to Cross-Appeal is granted.

3. No order is made on the Cross-Appeal.

4. There shall be no order as to costs.

Issued by: Hayley Norton Assistant Registrar Date of issue: 16 September 2025 At: 2pm

INTRODUCTION

1. This is the appeal from the judgment given on 12 February 2025 (the “Judgment”) of H.E. Justice Maha Al Mheiri (the “Judge”) in the Small Claims Court (“SCT”) dismissing the Appellant’s claim. On 7 April 2025 I gave permission to appeal. There followed:

2. Despite the proliferation of documents and submissions the facts are relatively straightforward and largely undisputed. While the Appellant’s appeal notice dated 21 February 2025 does refer in its conclusion to “incorrect factual findings”, none is identified. The Respondent’s cross-appeal notice does challenge limited findings of fact in two proposed grounds: first, it is said that the Judge’s statement at paragraph 16 of the Judgment that she was not satisfied the statutory provisions had been met is wrong as a finding of fact as the Appellant had provided the warranty required by 11(2)(b)(i) of the Employment Law; and secondly, if paragraph 16 is intended to be a finding of fact that the Appellant did not have the opportunity to receive independent legal advice, that is wrong as a finding of fact.

THE FACTS AS FOUND BY THE JUDGE

3. An appeal from the SCT to the Court of First Instance (“CFI”) is not a de novo hearing, the CFI will only allow an appeal where the decision was: (1) wrong; (2) unjust because of a serious procedural or other irregularity in the proceedings; or (3) wrong in relation to any other matter provided for or under any law (RDC 53.87). The unchallenged findings of fact of the SCT will therefore bind the parties.

4. I summarised the Judge’s findings in the reasons for granting the Appellant permission to appeal. I repeat that summary here with additions in the light of the Respondent's application.

5. In her Judgment, the Judge recorded that the dispute arose out of the employment of the Appellant by the Respondent pursuant to an Employment Contract dated 17 October 2023 (the “Employment Contract”). The Claimant was hired in the position of ‘Travel Administration Manager’ with a monthly salary of AED 15,000.

6. The Claimant signed and returned the Employment Contract to the Defendant on 20 October 2023. The Employment Contract stipulated that the Claimant’s commencing date would be 20 November 2024, with 6 months’ probation period:

“2.4 The first six months of the Employment shall be a probationary period during which the Employee's Employment may be terminated at any time with no notice or payment in lieu of notice; and the Employee's performance, attendance and suitability for continued employment will be monitored. At the end of the probationary period the Employee will be informed in writing if they have successfully completed the probationary period.”

7. The Judge found that due to the Appellant being sick at the time of signing the Employment Contract, the parties agreed on an amended starting date being the 27 November 2023. This was confirmed by email only, and not amended in the Employment Contract:

8. On 23 May 2024, the Claimant was issued with a termination letter and was told that the reason behind her termination was over consumption of her food allowance and her termination was effective immediately. On 30 May 2024, after negotiations and amendment to her final settlement calculation, the Claimant signed and received her final settlement entitlements (the “Final Settlement Agreement”).

9. The Judge noted that the Respondent argued that the Appellant signed her Final Settlement Agreement, therefore legally waiving her right to file any future claims or complaints against the Respondent, as per clause 13 of the Agreement:

“…and (d) without limitation to the generality of the foregoing, you expressly waive any rights or claims you may have in relation to any such payments, awards or benefits that you might have received had your employment with the Company not terminated.”

10. The Judge then directed herself to Article 11(2) of the DIFC Employment Law:

11. She held that it is clear by this provision that the inclusion of Article 2(b)(i) is necessary to waive the right to file a claim for the payments, awards or benefits referenced in the Final Settlement Agreement, or otherwise evidence of Article 2(b)(ii) must be presented in order to validly enforce the Final Settlement Agreement as a total defence against the Claim. She was not satisfied that the statutory provisions had been met to dismiss the Claim on the basis of the waiver. Therefore, the Respondent’s submission was rejected.

12. The Judge then went on to consider the date on which the Appellant’s employment commenced. The importance of the point was that if the commencement date was 20 November 2023, the termination letter of 23 May 2024 was outside the 6-month probationary period, but if the commencement date was 27 November 2023, it was not. The significance of that is that if the Appellant’s employment were terminated after the completion of her probationary period (according to the Judge) the Appellant would be entitled to notice and reimbursement of certain expenses.

13. The extent of her entitlement was not investigated by the Judge because she held that the commencement date of the Appellant’s employment was 27 November 2023 and therefore termination occurred within her probationary period.

14. The basis of the Judge’s decision was that, notwithstanding that the Appellant’s Employment Contract expressly stated that the commencement date was 20 November 2023, the date had been amended to 27 November 2023. The Judge noted that the Appellant submitted the Employment Contract was not amended to reflect any updated commencement date, and so should not materially change the probation period calculation as any ambiguity should be interpreted to the detriment of the drafter, relying on Barratt v Accrington and Rossendale College [2019] EWCA Civ 2098, an English precedent that states that minor discrepancies should not override clear contractual intentions. The Judge did not address this submission.

15. The Judge referred to Article 14(3) of the DIFC Employment Law which reads:

“Any amendment to an Employment Contract must be in writing and signed by both the Employer and Employee, unless such amendment is of an administrative nature only, in which case the Employer shall be required to record such amendment in writing and to give written notice thereof to the Employee prior to the amendment taking effect.”

16. The Judge found that the new start date was agreed in writing over email correspondence, and that a start date does not have any material impact beyond the administrative as it does not affect the obligations of the parties for the commencement of employment. She concluded that the statutory requirement was satisfied and 27 November 2024 [sic] is the relevant commencement date from which to calculate the probation period. Therefore, the employee was terminated within her probation period and is not entitled to a notice period or reimbursement of such.

17. She held that:

PERMISSION TO CROSS APPEAL

18. In addition to the two proposed grounds mentioned at paragraph ‎2 above the Respondent challenges the finding that the Judge was not satisfied that the statutory provisions had been met to enable enforcement of the Final Settlement Agreement, on the bases:

19. RDC Rules 53.84 to 53.118 do not provide a mechanism for cross-appeals. This is unsurprising given that the SCT procedure is meant to be a speedy, informal and, above all, economical method of resolving small claims. The more elaborate rules governing appeals generally are expressly disapplied. The only route to challenge a judgment of the SCT is by filing an appeal notice in accordance with RDC 53.107.

20. It is right that a successful party has no reason to appeal against the finding in respect of an issue on which it lost. If however the unsuccessful party is given permission to appeal, the successful party may well wish to contend that the judgment should be upheld on other grounds. That will necessitate filing an appeal notice and seeking permission to appeal as RDC 53.117(2) only contemplates the respondent serving submissions in opposition.

21. Ex hypothesi the time for filing an appeal notice will have expired. The cross-appealing respondent will therefore have to seek an extension of time for filing the appeal notice under RDC 53.110 which provides that where the time for filing an appellant’s notice has expired, the appellant must: (1) file the appellant’s notice immediately; and (2) include in that appellant’s notice an application for an extension of time. RDC 53.111 requires that the appellant’s notice should state the reason for the delay and the steps taken prior to the application being made.

22. The Respondent refers to Lakhan v Lamia [2021] DIFC CA 001 but did not indicate which paragraph. It was submitted that in that case the Court outlined relevant factors for granting extensions – length of the extension requested and justification for the delay. I was unable to find any references to “delay”, “extension” or “justification” in the report. It is the duty of counsel to direct the Court to the specific passage in any authority on which reliance is placed.

23. The Respondent submits that the Court must also consider any prejudice caused to the other party by the delay. In exercising its discretion, the Court must consider the overriding objective, which requires: i. the parties to be put on an equal footing; and ii. cases to be dealt with in a proportionate way including “the importance of the case”.

24. I would generally regard it as an adequate reason for delay in serving an appellant’s notice, if the proposed appeal is by a successful party seeking to uphold a judgment on other grounds in the face of permission to appeal granted to the unsuccessful party. Permission to the Appellant to appeal in this case was granted on 7 April 2025. The obligation on a party seeking permission to (cross) appeal out of time is to do so by filing the appellant’s notice immediately.

25. The Respondent did write to the Registry on 10 April 2025 pointing out that cross-appeals are not specifically provided for in RDC Part 53 and seeking directions. On 11 April 2025 the Appellant wrote to the Registry requesting the Registry to decline to consider any cross-appeal request.

26. On 16 April 2025 Stephenson Harwood (who were not at that time on the record for the Respondent) wrote to Registry reiterating that the Respondent had asked for clarification of the procedure to follow. The Appellant immediately wrote objecting to their involvement.

27. On 28 April 2025 the Registry requested the parties to provide the Registry with their mutual availability for an Appeal Hearing in the month of May 2025, by no later than 4pm on Tuesday, 29 April 2025. The Respondent said it was available on 19 May otherwise not until June or July. The Appellant said she was not available on 19 May but was available on other dates in May. The Respondent offered dates in June and July. The Appellant replied that she was not available and that in the interests of procedural economy, fairness to both parties, and judicial efficiency, she requested that the appeal can and should be determined based on the comprehensive written record already available to the Court, without the need for further delays or additional hearings. The Registry again asked for mutually agreed dates for a remote hearing. This led to a length repetition of the previous correspondence.

28. On 12 May 2025 the Respondent submitted to the Registry an urgent request for directions regarding the appeal and cross appeal, and Grounds of Cross Appeal. The Registry replied on 14 May asking the Respondent to confirm whether it was seeking to request the Appeal Court to: (i) vary the decision of the lower Court in any way; or (ii) uphold the decision of the lower Court for reasons different from or additional to those given by the lower Court. The Respondent replied that it was seeking both. On 16 and 21 May 2025 the Registry gave directions for the Respondent to file an appeal notice by 20 May, the Appellant may file submissions opposing both the grant of permission and the merits of the cross-appeal by 3 June and the Respondent to file submissions in reply by 10 June 2025. That timetable was not observed as indicated at paragraphs ‎1(j) and ‎(k) above. The case was referred back to me and I directed that the parties had permission to file further submissions and that I would determine matters on the papers.

29. I have set out the procedural history in some detail as on the face of the chronology it appears that the Respondent did not file its appeal notice until 6 weeks after the Order giving permission to the Appellant to appeal. I should normally regard a delay of that length as fatal to an application for permission to appeal especially where the admonition in RDC 53.110 is to file immediately, but in the light of the correspondence I consider that the Respondent has an acceptable excuse for not so doing and I will not rule the application as being out of time.

30. It therefore remains to consider whether the proposed cross-appeal has a real prospect of success within the meaning of RDC 53.91 or there is some other compelling reason why the appeal should be heard.

31. “A real prospect of success” means a realistic, as opposed to a fanciful, prospect of success. I consider that it does: it is hard to discern from the Judgment what the Judge meant at paragraph 15 of her Judgment that “It is clear by this provision that the inclusion of Article 2(b)(i) is necessary to waive the right to file a claim for the payments, awards or benefits referenced in the Final Settlement Agreement.” Did she mean that it is necessary only that the employee warrants in the written agreement that they were given an opportunity to receive independent legal advice or that the employee was actually given such an opportunity.

32. The Respondent submits that the proposed cross-appeal meets the requirements of RDC 53.91(2) that there is a compelling reason for the appeal to be heard. It raises issues of material importance within the DIFC Courts' jurisdiction. These issues affect both employers and employees subject to the DIFC Employment Law. The correct interpretation of Article 11(2)(b) is of wider importance. It concerns how to validly settle potential claims under that law.

33. I agree that the interpretation of Article 11(2) of the DIFC Employment Law raises a point general importance.

34. Accordingly, I grant permissions to the Respondent for its cross-appeal under both limbs of RDC 53.91.

THE APPEAL

35. I agree with the Respondent that there is a single point in the appeal: was the Judge wrong in finding that the Appellant’s employment commenced on 27 November 2023? The point turns on whether the Commencement Date stated in the Appellant’s contract was the effective date or whether it was effectively varied by the email set out at paragraph 8 above. The Judge did not state the date of the email but it was sent on 18 October 2023.

36. There are further material facts which were before the Judge not adverted to in the Judgment and appear to be undisputed (my emphasis):

37. In my judgment the question as to the commencement date for the purposes of Employment Contract is one of contractual interpretation and therefore one of law. It is right that “Schedule 2 Basic Particulars of Employment” to the Employment Contract defines the Commencement Date as 20 November 2023.

38. The Respondent submits that the Judge was right to find that the Commencement Date was 27 November 2023 as the change was purely administrative in nature as a start date does not have any material impact beyond administrative as it does not affect the obligations of the parties for the commencement of employment and therefore did not have to be in writing in accordance with Article 14(3) of the DIFC Employment Law.

39. I do not agree that a start date does not have any material impact beyond administrative. The contrary is readily apparent from the Contract of Employment itself:

“2.3 The Employee's period of continuous employment with the Company for statutory purposes commenced on the Commencement Date stated in Schedule 2 and, unless terminated by the Company in accordance with clause 17.1, shall continue until and unless terminated by either party with the notice stated in Schedule 2.2.4 The first six months of the Employment shall be a probationary period during which the Employee's Employment may be terminated at any time with no notice or payment in lieu of notice; and the Employee's performance, attendance and suitability for continued employment will be monitored. At the end of the probationary period the Employee will be informed in writing if they have successfully completed the probationary period.”

The Commencement Date defines the Employee's period of continuous employment for statutory purposes and the probationary period. Accordingly, the amendment to the Employment Contract had to be in writing and signed by both the Employer and Employee.

40. The Appellant contends that under Article 29 of the DIFC Contract law and general contractual principles, parties are bound by the written terms they agreed to. The Respondent also refers to Articles 24 and 25 dealing respectively with modified acceptance and written confirmation containing additional or different terms (i.e. counter-offers). I do not think that those provisions of the Contract Law are of assistance: Article 14(3) of the Employment Law is a specific enactment (“lex specialis”) and takes precedence a general law (“lex generalis”).

41. The real question is whether the exchange of emails on 18-20 October 2023 was sufficient to amount to an amendment to the Employment Contract in writing and signed by both the Employer and Employee.

42. It seems to me that the correct analysis is that suggested by the Respondent at paragraph 39 and its submissions dated 25 July 2025. It was expressly agreed between the Appellant and Respondent on 18 October that the Employment Contract when signed would have a start date of 27 November 2023, that it was unnecessary to execute a new form and that the Appellant should just sign the document in the form sent to her. But was this sufficient to satisfy the requirements of Article 14(3) of the Employment Law?

43. The emails were self-evidently in writing, but were they “signed”? The Respondent points to Article 21 of DIFC Electronic Transactions Law, which provides that:

“Where any provision set out in any other DIFC law requires the signature of any person, or provides for certain consequences if a document or record is not signed, that provision set out in the other DIFC law is satisfied if an Electronic Signature is used.”

44. Electronic Signature is defined as "an Electronic sound, symbol or process attached to or logically associated with a Record and executed or adopted by a person with the intent to sign the Record". “Record" for the purpose of defining “Electronic Signature” is defined as "Information that is inscribed on a tangible medium or that is stored in an Electronic or other medium and is retrievable in perceivable form.” Article 23(1) of DIFC Electronic Transactions Law provides that "An Electronic Signature is attributable to a person if it was the act of the person."

45. The Respondent’s emails had defined signature blocks, the Appellant’s were more informal, but the response to “No need to send a new one, please accept this e-mail as confirmation that your new start date will now be the 27th of November 2023” did finish with “Regards” and her name. I am satisfied that this is an electronic signature for the purposes of Article 21 of DIFC Electronic Transactions Law: the Appellant’s email was electronically stored information in perceivable form to which she attached her name with the intention of accepting the offer of employment as varied by the preceding email from the Respondent.

46. The Respondent also suggests:

47. While I have reached the same conclusion as the Judge, namely that the Commencement Date of the Appellant’s employment was 27 November 2023, I have reached it by a different and rather more complicated legal route. It was an argument that was presented to the Judge and the argument that formed the basis of her Judgment was put in the alternative. Either way, I consider that the result reflects reality which was that it was agreed between the parties that the Appellant would start work on 27 November 2023.

48. It follows that termination notice was served within the Appellant’s probationary period and the appeal must therefore be dismissed.

CROSS-APPEAL

49. It also follows that it is unnecessary to decide the cross-appeal and I consider that it is desirable that I should not do so. I found at paragraph ‎33 above that the interpretation of Article 11(2) of the DIFC Employment Law raises a point general importance. While the Appellant’s written submissions are impressive and articulate she is not a lawyer. I consider that it is in the interests of the development of DIFC law that the Court reserves the determination of a point of public important to an occasion where there is greater “equality of arms”.

COSTS

50. The Respondent seeks an order that in the event that it is successful, the Appellant should pay its costs of the appeal and cross-appeal, to be assessed if not agreed. RDC 53.118 gives a general discretion to the Court as to costs. Under RDC 38.30 the general rule is that the Court should make an immediate assessment of the costs. An immediate assessment is not possible in the present case because no Statement of Costs was filed by the Respondent.

51. I am not minded to make an order for costs for the following reasons: first, I have dismissed the appeal but on different grounds than the Judge and have held that the grounds relied on by the Judge were wrong. Secondly, I have considered it unnecessary to determine the cross-appeal. Thirdly, these proceedings have gone on long enough and it is time to draw a line under them. I have little doubt that the Respondent’s costs would not be capable of agreement giving rise to a whole new round of satellite litigation.

DISPOSAL

52. I order: